Newman v. Universal Enterprises, 1905.

• Decision Date: 04 March 1957
• Docket Number: No. 1905.,1905.
• Citation: 129 A.2d 696
• Parties: William Lawrence NEWMAN, a/k/a Newman William Lawrence, Appellant, v. UNIVERSAL ENTERPRISES, Inc., a corporation, Assignee of Universal Jewelry Co., Inc., Appellee.
• Court: D.C. Court of Appeals

129 A.2d 696

William Lawrence NEWMAN, a/k/a Newman William Lawrence, Appellant, v. UNIVERSAL ENTERPRISES, Inc., a corporation, Assignee of Universal Jewelry Co., Inc., Appellee.

No. 1905.

Municipal Court of Appeals for the District of Columbia.

Argued January 7, 1957.

Decided March 4, 1957.

Robert J. Harlan, Washington, D. C., with whom Clarence H. Featherson was on the brief, for appellant.

Jack Politz, Washington, D. C., for appellee.

Before ROVER, Chief Judge, and HOOD and QUINN, Associate Judges.

ROVER, Chief Judge.

This appeal is from the denial of a motion to set aside a confession of judgment and to quash a writ of attachment issued thereon. Appellee had instituted suit against the appellant to recover a balance due for merchandise sold and delivered. Without service of process upon appellant, the clerk of the Municipal Court made entry of judgment in the case in accordance with a praecipe, purportedly signed by appellant in the office of the appellee and witnessed by an employee of appellee, authorizing the clerk to enter his voluntary appearance, acknowledging a copy of the claim and his confession of judgment in the cause. Appellant predicated his motion on three grounds: (1) that the court never acquired jurisdiction for lack of service of process upon him and that the judgment was therefore void; (2) that his signature on the praecipe was a forgery; and (3) that there had been an agreement between parties' counsel in a prior suit upon the same subject matter to voluntarily dismiss and dispose of the entire case as to appellant.

On the first point raised the court ruled that the judgment by confession as entered by the clerk, pursuant to the praecipe after the filing of the action, was prima facie valid. As to appellant's second contention, the trial judge found as a fact that appellant had executed the praecipe, although there was "strong evidence on both sides of this case."

On the third issue relating to the prior suit between the same parties upon the same cause of action, the testimony of the attorney retained by appellant in that suit was that after answer had been filed by appellant and the matter had come before the court, the judge expressed doubt as to whether the signature on the contract was the genuine signature of appellant and continued the case for trial for ten days to give an opportunity to counsel for appellee to secure the services of a handwriting expert; counsel did not do this but thereafter requested the consent of counsel for appellant to his taking a voluntary dismissal; counsel for appellant agreed to do so if appellee's counsel would write him a letter assuring him that the matter would be disposed of entirely so far as his client was concerned. This letter, addressed to appellant's then counsel, signed by appellee's counsel, read as follows:

"Under the circumstances, in this case, if you have no objection I will have a voluntary non suit entered so we will dispose of the entire case so we will dispose of the entire case [sic] as far as your client, W. J. Newman is concerned."

The letter is dated June 20, 1955. A day later, a praecipe was filed in the initial case directing the clerk to "please enter voluntary non-suit herein by consent of all parties through their respective counsel of record." The praecipe is signed by counsel for appellee and under the words "I consent: —" appears the signature of appellant's counsel in that case. Subsequently the following entry was duly made: "Ptf takes a voluntary non-suit."

The trial judge was of the opinion that the letter could not impeach the praecipe filed the next day as a stipulation of dismissal of the first suit except upon the allegation that appellant's counsel had been defrauded. Appellant's present counsel would not make this claim however and the court ruled that the praecipe stipulating to the dismissal of the first action between the parties was valid and effectual.

Municipal Court Civil Rule 60(b) sets forth the grounds upon which relief from a judgment by confession may be granted. In his attempt to set aside this judgment, in the first two points of his motion appellant proceeded upon ground (4) and ground (3) of the rule and in his last point alleged that he had a defense to the institution of the second suit upon which judgment was confessed because it was the intention of the parties, as expressed in the letter, to dispose of the entire claim against appellant in the former suit between them upon the same subject matter. Placed in this perspective, the last point raised, viz., that appellant had a defense to the suit upon which he confessed judgment, could not be raised affirmatively¹ until the judgment is set aside and was not a ground itself for vacating the judgment.

The trial judge's ruling that the judgment was prima facie valid, challenged here because appellant was never served with process, was not error in this case because he voluntarily appeared² by signing a praecipe authorizing the clerk to enter his voluntary appearance.³

As to the finding that appellant signed the praecipe confessing judgment, we must hold that the trial judge was justified in holding that forgery was not proven.⁴

Therefore it was proper to refuse to set aside the judgment under Rule 60(b) on the grounds specifically alleged in appellant's motion. However, the record in this case reveals that the trial judge, when counsel were framing the issues before him at the beginning of his hearing on the motion, made the following statement:

"Presumably, there would be a corrollary issue, and that is, whether under all the facts and circumstances surrounding this transaction, I should exercise my discretion to permit the setting aside of this judgment on the grounds of excusable neglect or something similar to that under 60(b)."

Accordingly we think it in the interest of substantial justice that all of the facts and circumstances surrounding the surrender by appellant of his day in court should be carefully inquired into; we should zealously safeguard the right of the citizen to have the opportunity to defend himself against suits on claims to which he may have a meritorious defense; mere technicalities should not be permitted to impinge upon substantial rights.

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